5.  The applicant was born in 1947 and is currently detained in Diez Prison.
6.  Following several convictions mainly of property offences, the applicant was found guilty by the Frankfurt am Main District Court on 16 February 1984, in particular, of sexual abuse of children and dissemination of pornographic documents and sentenced to ten months’ imprisonment. He was notably found to have shown pornographic films to children aged twelve to sixteen.
7.  On 17 December 1997 the Hanau Regional Court convicted the applicant of eleven counts of sexual abuse of children, committed between July 1986 and December 1996. It sentenced him to four years’ imprisonment and ordered his preventive detention under Article 66 § 2 of the Criminal Code (see paragraph 34 below).
8.  The Regional Court found that the applicant had partly masturbated boys aged six to thirteen and had partly incited them to commit acts of a sexual or masochist nature on him in his apartment. He had recorded the acts on video and shown them to other minors. The applicant, who had been diagnosed by psychiatric expert R. with a sexual deviation with paedophile and masochist elements which was not so severe as to be pathological, had acted with full criminal responsibility.
9.  The Regional Court further considered that the applicant’s preventive detention was necessary. He had a propensity to commit further similar offences, which he considered as harmless and not necessitating punishment, by which the children concerned could suffer serious psychological damage.
10.  On 27 October 2001 the applicant, having fully served his prison sentence, was placed for the first time in preventive detention, executed initially in Werl Prison and since 19 January 2004 in Diez Prison.
11.  The continuation of the applicant’s preventive detention in prison was ordered by the courts dealing with the execution of sentences at regular intervals. It was ordered, in particular, by the Koblenz Regional Court on 3 February 2011, based on a report dated 1 December 2010 by a psychiatric expert, V.
12.  On 9 and 23 May 2011 the applicant, referring to the Federal Constitutional Court’s leading judgment on preventive detention of 4 May 2011 (see paragraphs 42-48 below), requested the Koblenz Regional Court to order his release immediately.
13.  On 16 September 2011 the Koblenz Regional Court, having heard the applicant in person, his counsel and an external psychiatric expert, V., ordered the applicant’s preventive detention to continue (Article 67 d § 3 of the Criminal Code; see paragraph 37 below).
14.  The Regional Court found that the applicant would have served ten years in his first preventive detention by 26 October 2011. This had been the maximum duration for such detention at the time of the applicant’s offences and conviction under Article 67 § 3 of the Criminal Code in the version then in force, which had, however, been abolished in January 1998 (see paragraph 36 below).
15.  The Regional Court further noted that the stricter standards set by the Federal Constitutional Court in its leading judgment of 4 May 2011 for a continuation of preventive detention beyond that time-limit (see paragraph 44 below) had been met in the applicant’s case. It was still highly likely that the applicant, owing to specific circumstances relating to his conduct, would commit the most serious offences against the sexual self‑determination of children, by which the victims would severely be harmed mentally and physically. Despite the fact that he had been in preventive detention for almost ten years, it was very likely that he would commit further serious acts of sexual abuse of children.
16.  In this respect, the Regional Court endorsed the findings made in the report submitted by psychiatric expert V. on 1 December 2010, following an examination of the applicant, and his additional report dated 2 August 2011, drawn up on the basis of the case-file as the applicant had refused another examination. In his reports, the expert, having regard to the common instruments for the classification of diseases (inter alia, the ICD-10 and the psychopathy checklist), had considered the applicant as dangerous for being a psychopath and as suffering from paedophilia towards boys and from a dissocial personality, which could not be considered as pathological. His dissocial personality was characterised by continuous irresponsibility and disregard for social rules and obligations, his inability to maintain long-term relationships, his inability to feel guilty and to learn from experience, as well as his tendency to blame others and to superficially rationalise his own behaviour.
17.  Expert V. had further noted that the therapy offered to the applicant in prison had been discontinued in 2004 after one year of treatment as the applicant kept justifying his offences, denied any paedophile behaviour and lacked empathy. Despite his age, there was therefore a medium to high probability that the applicant would reoffend. Despite the fact that the applicant had not used physical violence when committing his offences, there had been body contacts and sexual violence in that he had used children to satisfy his sexual desires. A therapy of the applicant did not appear possible in view of his attitude. It was therefore still highly likely that the applicant would commit further serious sexual offences if released.
18.  The Regional Court further considered that, in accordance with the requirements set out in the Federal Constitutional Court’s judgment of 4 May 2011, the applicant suffered from a mental disorder within the meaning of section 1 § 1 of the Therapy Detention Act (see paragraph 39 below). That mental disorder did not have to diminish the applicant’s criminal responsibility. Psychiatric expert V. had explained in his additional report that the applicant suffered from paedophilia towards boys, which was a sexual deviation, and a dissocial personality. These were not pathological, but were mental disorders for the purposes of the Therapy Detention Act, which had been phrased by reference to Article 5 § 1 (e) of the Convention. The applicant’s dangerousness was a result of these mental disorders.
19.  Moreover, as all attempts for a therapy had been fruitless and as there was a high risk that the applicant would commit serious sexual offences against children, the applicant’s continued preventive detention was also proportionate.
20.  On 5 December 2011 the Koblenz Court of Appeal dismissed the applicant’s appeal. Endorsing the reasons given by the Regional Court, it confirmed that the paedophilia the applicant had been diagnosed with, against the background of a dissocial personality, had to be classified as a mental disorder for the purposes of Article 1 § 1 of the Therapy Detention Act. As the applicant still considered the acts he had been convicted of to be punishable, but not harmful for the children concerned and claimed that any treatment was therefore unnecessary, it was almost certain that he would commit further similar offences if released. There was no high risk that the applicant would commit violent offences against children as he had not used violence against his victims in the past. However, it was highly likely that he would commit acts such as masturbation involving children and recording of pornographic videos of children, which had to be classified as most serious sexual offences as they could cause particularly serious damage to the mental development of children.
21.  On 10 December 2011 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He claimed, in particular, that his continued preventive detention beyond the ten-year maximum period applicable at the time of his offences was disproportionate and had breached his right to liberty and the prohibition of retrospective punishment as protected by the Basic Law and by Articles 5 § 1 and 7 § 1 of the Convention. He referred to this Court’s judgment of 17 December 2009 in the case of M. v. Germany (no. 19359/04, ECHR 2009) and to the Federal Constitutional Court’s leading judgment of 4 May 2011 on preventive detention (see paragraphs 42-48 below) to support his view.
22.  On 19 January 2012 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 2754/11).
23.  On 26 April 2012 the Koblenz Regional Court again ordered the applicant’s preventive detention to continue. It found that there had not been any changes in the applicant’s attitude towards his offences and considered that the requirements for the applicant’s further preventive detention as set out in the Koblenz Court of Appeal’s decision dated 5 December 2011 were still met. On 21 June 2012 the Koblenz Court of Appeal dismissed the applicant’s appeal against that decision. On 4 October 2012 the Federal Constitutional Court declined to consider the applicant’s constitutional complaint (file no. 2 BvR 1696/12).
24.  On 25 January 2013 the Koblenz Regional Court ordered another time that the applicant’s preventive detention was to continue as the conditions therefor, as set out in its previous decisions, were still met. On 8 March 2013 the Koblenz Court of Appeal dismissed the applicant’s appeal.
25.  Since January 2004 the applicant is detained in a separate wing of Diez Prison for persons in preventive detention.
26.  In 2004 the applicant underwent a therapy for sexual offenders in prison. That therapy was discontinued in 2005 following conflicts with the psychologist as the applicant had not changed his attitude towards his offences.
27.  On 17 February 2005 the Koblenz Regional Court found that the applicant rejected any offers for treatment. On 14 May 2007 it confirmed that the applicant had not made any attempts whatsoever to confront himself with his criminal conduct.
28.  Following signs of some positive changes in his personality following a number of meetings with the prison’s social service, the applicant was permitted to leave the prison for one to two days under the supervision of the prison staff in May and September 2011 and in February 2012. However, he discontinued the meetings when it became clear that he would not be released after having spent ten years in preventive detention.
29.  According to the findings of the Koblenz Regional Court in the proceedings at issue, the applicant was not currently undergoing any therapy in Diez Prison as he considered himself not to be in need of treatment. He has been meeting and discussing with a social worker in prison once in a fortnight.
30.  At present, the prison’s psychological and social services have regular conversations with the applicant in order to attempt to motivate him to undergo further treatment.
31.  On 7 June 2013 the applicant was transferred to a new building which had been erected on the premises of Diez Prison in order to comply with the constitutional requirement of establishing a difference between preventive detention and detention for serving a term of imprisonment. In that building detainees are, in particular, provided with rooms measuring 18 m² and large spaces for indoor and outdoor leisure activities and have access to staff members of the psychiatric, psychological and social services.